306 Ga. 894 FINAL COPY
S19A0616. MYRICK v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Andre Myrick was convicted of felony murder and a
firearm offense in connection with the shooting death of Kenneth
Bevis. On appeal, he argues that the trial court erred by denying his
Batson challenge as to three prospective jurors. He also argues that
the court erred by denying his request for a mistrial after the jury
heard a police detective refer to statements made by a witness who
died before the trial and that the State committed prosecutorial
misconduct by introducing this evidence. We affirm.1
1 Bevis was killed on July 6, 2013. On October 4, 2013, a Fulton County
grand jury indicted Appellant for malice murder, two counts of felony murder (based on aggravated assault and possession of a firearm by a convicted felon), aggravated assault, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. Appellant was tried from September 29 to October 5, 2015. The jury found him not guilty of malice murder, felony murder based on aggravated assault, and aggravated assault, but guilty of felony murder based on possession of a firearm by a convicted felon and both firearm charges. The trial court merged the possession of a firearm by a convicted felon count into the felony murder conviction and sentenced Appellant to serve life in prison for felony murder and five 1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following. On the
morning of July 6, 2013, Bevis left his apartment in Atlanta, where
Andrea Barry was sleeping, and picked up Kari Staymosse from the
hotel where she was living. Bevis and Staymosse planned to use
crack cocaine together. They stopped at a convenience store to get
supplies for their crack pipe and then went to Bevis’s apartment.
When they arrived there around noon, Appellant and Barry were
standing in the living room near the front door. Bevis and Staymosse
knew Appellant, because they would sometimes use drugs together
and Appellant used to live in Bevis’s apartment building.
Barry said to Bevis and Staymosse, “Thank God you are here”;
she then retreated to the bedroom. Bevis asked Appellant what he
was doing there and said, “You are not welcome. Please leave.” In
consecutive years for possession of a firearm during the commission of a felony. Appellant filed a timely motion for new trial, which he later amended with new counsel. After a hearing, the trial court denied the motion on April 6, 2018. On May 31, 2018, Appellant filed a motion for an out-of-time appeal, which the trial court granted on October 4, 2018. Appellant then filed a timely notice of appeal, and the case was docketed to the April 2019 term of this Court and submitted for decision on the briefs. 2 response, Appellant pulled out a gun and said, “I’m not going
nowhere.” Bevis put his hands up and sat down on the couch;
Staymosse sat in a chair across from him. Appellant was talking
very fast, sweating, and seemed “pretty sh[a]ken up.” While
Appellant was “ranting and raving” for about three minutes, Bevis
kept his head down, shaking it. Then Appellant told Bevis, “Because
of you, I will never see my daughter again,” and shot Bevis in the
chest.2 After the gunshot, Barry, who had remained in the bedroom,
jumped out of the bedroom window, causing a loud crash. When
Appellant heard it, he fled the apartment. Staymosse immediately
called 911. Barry, who had run to a nearby business, got an
employee there to call 911 as well.3
When the police arrived, Bevis was dead. His body was
2 There was no other discussion of Appellant’s daughter at trial. 3 The account of what happened in the apartment comes from Staymosse’s trial testimony and her prior statement to the police. Barry had died by the time of trial, so she could not testify, and her statement to the police was not admitted. The two 911 calls were played for the jury. The police officer who responded to the 911 call testified that Barry flagged him down from the business, but he did not discuss what Barry told him.
3 slumped between the couch and coffee table. He had been shot once
in the chest; the bullet’s trajectory was consistent with the gun’s
being positioned higher than his chest. Staymosse identified
Appellant as the shooter, described him, and picked him out of a
photo lineup.4
At 12:21 p.m., about 15 minutes after the shooting, Leslie
Breland called 911 to report that she had seen a man walking swiftly
through her back yard, which was surrounded by a six-foot-high
wooden fence, then through her garage and down her driveway. Two
boards on the fence had been pulled up to create a hole in the fence.
When the police arrived, they could not find the man. Breland was
later shown a photo lineup and identified the photograph of
Appellant, whom she did not know, as the man who walked through
her yard. When measured through the woods behind Breland’s yard,
the distance to Bevis’s apartment building was less than 700 feet.
Around 6:00 p.m., another person called 911 and reported seeing a
4 Detective Darrin Smith, who interviewed Staymosse, testified that he
also spoke to Barry and based on the information that he got from the two women, he developed Appellant as a suspect. 4 man who matched Appellant’s description coming out of the bushes
onto the road. That spot was about seven-tenths of a mile on foot
from Bevis’s apartment building. Police responded to that call
quickly and located Appellant walking a short distance down the
road. He was taken to the police station and interviewed.
Appellant told the police the following story. At the time of the
murder, he was sleeping in Room 181 at the Cheshire Motor Inn. He
woke up at 1:00 p.m., went to the InTown Suites to visit friends from
1:00 to 3:00 p.m., and then went to Midtown Bowling from 3:00 to
6:00 p.m. While there, he ordered a sandwich called a Big Nasty.
Appellant said that although he was friends with Bevis, the last
time they had seen each other was about two weeks earlier.
The path between the Cheshire Motor Inn and the InTown
Suites would not have taken Appellant through the yard where
Breland saw him. The police also determined that a man who had
never met Appellant rented Room 181 from July 4 to July 6;
although he left at 2:00 p.m. on July 5, so he was not there during
the night before the murder, he did not check out and the room was
5 not rented to anyone else. And no one purchased a Big Nasty
sandwich at Midtown Bowling between 3:00 p.m. and 6:00 p.m. on
the day of the murder.
In addition, cell phone records showed that on July 3, three
days before the murder, Appellant called Bevis seven times between
6:30 and 6:54 p.m. The next day, Appellant called Bevis seven more
times between 9:04 and 11:40 p.m. Most of these calls were less than
a minute, which a detective testified usually indicates that the call
went to voicemail. The longest call lasted one minute and one
second. Appellant did not call Bevis again, but at 12:11 a.m. on July
5, he sent a text message to Bevis saying, “I got those 50$ grams now
and it’s good.” Bevis responded, “You need to lose this phone
number. I don’t need idiots hanging around me.” Appellant
answered, “I understand buddy but that was when i was getting
high and this is now . . . things r getting back to the way i was
mentall. But I must admit that somebody f**ked . . . Me up!
Somebody put something in my drink or food or something & i think
i knw who it was but they r gone.”
6 Appellant did not testify at trial, but his video-recorded
interview was played for the jury. His main defense theory was that
the police did not do a thorough investigation, particularly because
they relied so heavily on the word of Staymosse rather than treating
her as a suspect.
Appellant does not dispute the legal sufficiency of the evidence
supporting his convictions. Nevertheless, as is this Court’s usual
practice in murder cases, we have reviewed the record and conclude
that, when viewed in the light most favorable to the verdicts, the
evidence presented at trial and summarized above was sufficient to
authorize a rational jury to find Appellant guilty beyond a
reasonable doubt of felony murder and possession of a firearm
during the commission of a felony. See Jackson v. Virginia, 443 U.S.
307, 319 (99 SCt 2781, 61 LE2d 560) (1979). See also Vega v. State,
285 Ga. 32, 33 (673 SE2d 223) (2009) (“‘It was for the jury to
determine the credibility of the witnesses and to resolve any
conflicts or inconsistencies in the evidence.’” (citation omitted)).
2. (a) At the end of jury voir dire, Appellant raised a challenge
7 under Batson v. Kentucky, 476 U.S. 79 (106 SCt 1712, 90 LE2d 69)
(1986), based on the State’s use of six of its eight peremptory strikes
for jury members and both of its two peremptory strikes for
alternates on prospective jurors who were African-American,
meaning that the State used eight out of ten of its strikes (80%) on
a group that made up only 36% of the jury venire. The trial court
ruled that Appellant had made a prima facie case. The prosecutor
then explained his reasons for each of the eight challenged strikes.
Appellant conceded that the reasons for three of the State’s strikes
were race-neutral, and on appeal he does not challenge two other
strikes.
As to the three strikes Appellant challenges here, the
prosecutor offered the following reasons. Juror 9 was very young and
once had her driver’s license suspended for missing school. Juror 13
had a physical disability that could make it hard for him to sit for
long periods, he was convicted of misdemeanor drug charges five
years earlier, and his driver’s license had been suspended. Juror 20
did not provide much information in response to questions and
8 seemed uncomfortable talking about her aunt’s and uncle’s use of
heroin and crack cocaine, and the prosecutor “did not get a good vibe
from her.”
Appellant disputed each of these reasons. He argued that one
of the jurors accepted by the State, who Appellant acknowledged
was African-American, was close in age to Juror 9. Appellant argued
that Juror 13 said his disability would not prevent him from serving
and that another juror (also African-American) had a DUI, which
would have included a license suspension. As to Juror 20, Appellant
argued that two other jurors did not provide many answers on their
questionnaire and another was soft-spoken. He further argued that
Juror 20 was related to the aunt and uncle only by marriage and
that the prosecutor’s claiming not to get a “good vibe” was clearly
pretextual.
The trial court ruled that the prosecutor’s reasons were race-
neutral and implicitly denied Appellant’s Batson challenge,
continuing the trial without any of the struck prospective jurors
being placed on the jury. In its order denying Appellant’s motion for
9 new trial, the court held that Appellant’s Batson challenge lacked
merit and expressly found that Appellant had failed to carry his
burden to show the prosecutor’s discriminatory intent after the
prosecutor provided race-neutral explanations for the strikes.
(b) Appellant argues that the trial court erred by denying his
Batson challenge because his arguments at trial in response to each
of the prosecutor’s explanations show that the prosecutor did not
truly have race-neutral reasons for striking Jurors 9, 13, and 20.
A Batson challenge involves three steps: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven the proponent’s discriminatory intent.
Johnson v. State, 302 Ga. 774, 779 (809 SE2d 769) (2018) (citation
and punctuation omitted).5
Because the prosecutor offered explanations for the strikes at
step two and the trial court ruled on the ultimate question of
5 The trial court’s rulings in its motion for new trial order cured any error
that the court made in failing at trial to expressly consider the third step of Batson or rule on the Batson motion as a whole. See Johnson, 302 Ga. at 780. 10 intentional discrimination at step three, we need not decide whether
the court correctly decided the step one prima-facie-showing
question. See Johnson, 302 Ga. at 779. “‘At the second step, all that
is required is for the proponent of the strike to provide a facially
race-neutral explanation for the strike[.]’” Id. (citation omitted;
emphasis in original). At the third step, “the trial court makes
credibility determinations, evaluates the persuasiveness of the
strike opponent’s prima facie showing and the explanations given by
the strike proponent, and examines all other circumstances that
bear upon the issue of racial animosity.” Id. at 779-780 (citation and
punctuation omitted). “[A] trial court’s finding as to whether the
opponent of a strike has proven discriminatory intent is entitled to
great deference [on appeal] and will not be disturbed unless clearly
erroneous.” Id. at 780 (citation and punctuation omitted). See also
Snyder v. Louisiana, 552 U.S. 472, 477 (128 SCt 1203, 170 LE2d
175) (2008) (“Step three of the Batson inquiry involves an evaluation
of the prosecutor’s credibility, and the best evidence of
discriminatory intent often will be the demeanor of the attorney who
11 exercises the challenge[.]” (citations and punctuation omitted)).
The prosecutor gave at least one race-neutral reason for each
of the strikes — Juror 9’s youth, Juror 13’s physical condition and
drug convictions, and Juror 20’s demeanor when she talked about
her aunt’s and uncle’s drug use. See Walker v. State, 281 Ga. 521,
522-523 (640 SE2d 274) (2007) (holding that a juror’s youth and the
involvement of a juror’s friends or family in criminal matters are
race-neutral reasons for peremptory strikes); Williams v. State, 271
Ga. 323, 324 (519 SE2d 232) (1999) (holding that the juror’s
involvement in criminal activity or prior convictions is a race-
neutral reason for a peremptory strike); Kelly v. State, 209 Ga. App.
789, 791 (434 SE2d 743) (1993) (holding that doubts about a
prospective juror’s “health, stamina, and ability to sit through a
lengthy trial and observe the witnesses” was a race-neutral reason
to strike that juror). Appellant’s attempts to refute these reasons
were not compelling. His arguments that another juror was close in
age to Juror 9 and that the juror with a DUI likely had his license
suspended like Jurors 9 and 13 do not help him show that the
12 prosecutor’s strikes were motivated by racial animus, because the
two jurors who were not struck were also African-American. See
Demery v. State, 287 Ga. 805, 808 (700 SE2d 373) (2010) (“‘The
opponent of the strike may carry its burden of persuasion by
showing that similarly-situated members of another race were
seated on the jury.’” (citation omitted; emphasis added)).
Moreover, Appellant’s argument about Juror 20’s limited
answers and lack of a “good vibe,” even if conceivably convincing
with regard to a juror strike on those grounds alone, does not negate
the other race-neutral reason the State gave for striking that juror
— her apparent discomfort when she talked about her aunt’s and
uncle’s criminal drug use. The trial court’s ultimate finding that
Appellant failed to prove discriminatory intent was not clearly
erroneous. See Johnson, 302 Ga. at 781-782. Appellant’s Batson
claim cannot be sustained.
3. (a) As mentioned in footnote 3 above, Andrea Barry, who was
in the apartment when Bevis was shot, died before trial. Because of
her unavailability, at the beginning of trial, the prosecutor told the
13 trial court that he had spoken to Appellant’s counsel and agreed that
he would not introduce any of Barry’s statements to police, because
such statements would violate the Confrontation Clause of the Sixth
Amendment to the United States Constitution. Notably, the State
did not agree that it would eliminate any mention of Barry from the
trial, nor did Appellant argue for such a purgation. In fact, the
prosecutor explained to the court that he planned to introduce the
911 call made at Barry’s direction, noting that Barry did not speak
directly on the call but her voice could be overheard giving
information to the person making the call. Appellant did not object.
When Detective Darrin Smith testified, the State played the
video recording of his interview of Appellant. During the interview,
Detective Smith made about a half-dozen references to two
witnesses to the crime, including twice telling Appellant that the
two witnesses had identified him as the shooter. After one of these
references, Appellant moved for a mistrial, outside the presence of
the jury, on the ground that the detective’s statement implied to the
jury that Barry had identified Appellant as the shooter, thereby
14 violating the Confrontation Clause as well as the State’s agreement
not to introduce Barry’s statements. The prosecutor responded that
the detective did not refer to Barry by name and that the statement,
which was made while interviewing a suspect, was not offered to
prove that there were truly two witnesses who identified Appellant
as the shooter. The trial court summarily denied Appellant’s
mistrial motion, and Appellant asked for and was granted a
continuing objection.6 The court then allowed the State to resume
playing the recording for the jury.7
(b) Appellant argues that the trial court erred by denying his
motion for a mistrial because admitting the detective’s recorded
statements that were apparently about Barry violated the
6 Appellant does not complain about the trial court’s implicit overruling
of this objection. Appellant did not ask for a limiting or curative instruction. 7 The recording of the interview is in the record. It is not clear from the
trial transcript, however, at what point in the interview Appellant moved for a mistrial, nor is it clear if the jury heard every reference to the two witnesses. At some point after the mistrial motion was denied, the prosecutor said that he was going to fast-forward through two portions of the recording due to the “court’s prior ruling.” It is not clear which ruling he was referring to; the attorneys and the court had a bench conference off the record, and when the trial resumed, what appear to be two short portions of the recording were skipped. 15 Confrontation Clause. Because Barry was unavailable, the
Confrontation Clause prohibited the State from introducing into
evidence any of her testimonial hearsay statements. See Crawford
v. Washington, 541 U.S. 36, 68 (124 SCt 1354, 158 LE2d 177) (2004).
But even assuming that the statements by Barry that the detective
was purporting to convey to Appellant were testimonial (a question
we need not decide), the Confrontation Clause “does not bar the use
of testimonial statements for purposes other than establishing the
truth of the matter asserted.” Id. at 59 n.9. See also OCGA § 24-8-
801 (c) (“‘Hearsay’ means a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.”). The hearsay
determination turns on whether Detective Smith, through his
recorded statements to Appellant, told the jury what Barry said
about the crime and whether that testimony was offered to prove the
truth of what Barry said. As to the first question, we will assume for
the sake of Appellant’s argument that the jury understood the two
witnesses to whom the detective referred to be Staymosse and
16 Barry.8
As to the second question, however, “the detective[’s]
statements were clearly not meant to establish as true that others
had implicated [Appellant], but were simply a part of an
interrogation technique.” Allen v. State, 296 Ga. 785, 788 (770 SE2d
824) (2015).9 See also United States v. Fernandez, 914 F3d 1105,
1111 (7th Cir. 2019) (“What [the officer] asked of or said to [the
suspect being interviewed] during interrogation was not offered for
its truth, but rather to establish what questions or statements [the
suspect] was responding to and the effect the former had on [the
suspect] as the listener.”). This is apparent from the minimal
8 Although Detective Smith never identified Barry by name, the jurors
knew that she had been in the apartment and called 911. As noted in footnote 7, it is not clear how many or which references to the two witnesses the jurors heard. Some of the references revealed different details about the two witnesses, including that they were “girls,” that they were “in the apartment,” and that they knew Appellant. Appellant has not specifically relied on any of these details in his argument at trial or on appeal, but which details the jurors heard affects how likely it is that they identified Staymosse and Barry as the two witnesses. 9 Although Allen was decided under Georgia’s old Evidence Code,
hearsay under the old Code, like hearsay as now defined in OCGA § 24-8-801 (c), was limited to out-of-court statements offered to establish “the truth of the matter asserted.” See, e.g., Cawthon v. State, 289 Ga. 507, 509 (713 SE2d 388) (2011). 17 amount of detail included in the detective’s varying accounts of the
two witnesses’ statements and the way in which the statements
were framed. In Detective Smith’s first mention of the two
witnesses, he said that a “couple people” identified Appellant as
“having some type of altercation” with Bevis and then shooting and
killing him; the detective later told Appellant that the witnesses
“say you shot him.” The detective’s other references to the witnesses
are more vague: “two witnesses . . . saw it happen”; “two people put
you there . . . [and] described exactly what happened”; “the witnesses
and evidence will speak for itself”; and “I got two witnesses, I don’t
need much more than that.”
Notably, the detective’s description of the two witnesses who
said they “saw” Appellant have an altercation with Bevis and then
shoot him is actually inconsistent with Staymosse’s testimony that
Barry immediately went into a different room and did not see the
shooting or what led up to it. And although we are assuming for the
sake of argument that the jury figured out who the two witnesses
were, Detective Smith never named them. The detective’s
18 statements were clearly designed to convince Appellant to speak,
rather than to provide him — or the jury — true accounts of witness
statements. See Allen, 296 Ga. at 788 (“The detectives did not
identify the ‘buddies’ mentioned, and no substance of any supposed
statements was placed before the jury by the detectives’ reference.”).
Accordingly, to the extent the jury could infer anything that Barry
supposedly said from the detective’s references to two witnesses in
the recorded interview, those supposed statements were not
hearsay, and their admission did not violate the Confrontation
Clause. See id. Thus, the trial court did not err in denying a mistrial
on this ground. See Wade v. State, 304 Ga. 5, 10 (815 SE2d 875)
(2018).
(c) Appellant also argues that the trial court should have
granted a mistrial on the ground that the detective’s recorded
statements violated the pretrial order prohibiting the admission of
Barry’s statements. In making this argument, Appellant seems to
believe that he made a clear motion in limine to exclude Barry’s
statements and the trial court ruled on that motion. The record
19 shows, however, that Appellant did not file a written motion in
limine, and to the extent that the pre-trial discussion about
excluding Barry’s statements could be characterized as an oral
motion in limine, the trial court did not issue a ruling on it; instead,
the State simply agreed that it would not introduce Barry’s
statements so as not to run afoul of the Confrontation Clause. As
discussed above, the admission of the detective’s statements in his
interview of Appellant did not violate the Confrontation Clause. So
even assuming there was an order based on the State’s agreement,
that order was not violated.
(d) Finally, Appellant argues that the prosecutor committed
misconduct by willfully violating the purported trial court order and
the State’s agreement not to discuss Barry at trial. “[W]hen a
defendant alleges a factually specific claim of prosecutorial
misconduct, the defendant must show actual misconduct and
demonstrable prejudice to his right to a fair trial in order to reverse
his conviction.” Brooks v. State, 305 Ga. 600, 606 (826 SE2d 45)
(2019) (citation and punctuation omitted). Appellant has shown
20 neither. He has failed to show actual misconduct because, as
explained above, there was no order on this issue and playing the
detective’s statements did not violate the State’s agreement about
Barry’s statements. Appellant also has failed to show that the
detective’s statements were prejudicial. The detective’s oblique
references to two witnesses who identified Appellant did not likely
add anything to the other testimony the jury heard — without
Appellant’s objection — that was clearly about Barry, including
Detective Smith’s trial testimony that he spoke to Barry and
developed Appellant as a suspect based in part on what she told
him.10
10 Appellant complains broadly on appeal about the prosecutor’s allowing
Barry to “speak from the grave,” although he does not clearly point to any evidence other than the interview recording to support his claim of prosecutorial misconduct. To the extent Appellant is arguing that the prosecutor committed misconduct by eliciting trial testimony about Barry from Staymosse, the responding police officer, and Detective Smith, he did not object to this testimony at trial. Thus, any claim of prosecutorial misconduct based on eliciting that testimony was waived. See Grier v. State, 305 Ga. 882, 887 (828 SE2d 304) (2019). Appellant does not enumerate the admission of this testimony as an evidentiary error, which could have made it subject to plain error review. See Martin v. State, 306 Ga. __ (__ SE2d __) (2019). See also State v. Kelly, 290 Ga. 29, 32 (718 SE2d 232) (2011) (explaining that although the appellant does not have to specifically ask for plain error review, he must
21 Judgment affirmed. All the Justices concur.
DECIDED OCTOBER 7, 2019.
clearly enumerate the alleged error that is entitled to plain error review). In any event, such a contention would fail. 22 Murder. Fulton Superior Court. Before Judge Campbell. Dell Jackson, for appellant. Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Kevin C. Armstrong, Assistant District Attorneys; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Matthew B. Crowder, Matthew D. O’Brien, Assistant Attorneys General, for appellee.